Part I: Conceptual Approach

This introduction is followed by a series of chapters which set out the book’s key concepts. These chapters frame the book’s central provocation – how might the ICC’s judgments have been different if a commitment to gender equality, and an awareness of gendered power relations, were at the forefront of the judges’ minds? In the first of those framing chapters (Chapter 3), lead editor Kcasey McLoughlin asks, ‘Do Feminists Believe in Fairytales?’ as we seek to make the case for another feminist judgment project, interrogating the role of imagination in judgment and pondering the possibilities and dilemmas of judgment writing as feminist method. This chapter is followed by two ‘in conversation’ pieces. In the first, Patricia Sellers, the ICC Prosecutor’s Special Advisor on Slavery Crimes, engages in a thought experiment with co-editor Rosemary Grey, reimagining what the ICC’s jurisprudence on slavery crimes might have looked like had relevant cases in previous international criminal tribunals been decided differently (Chapter 4). By exploring those jurisprudential ‘gaps’, Sellers posits that recent decisions at the ICC, but also within previous international criminal tribunals, are hamstrung by the reticence and failures of past jurists to identify and label crimes accurately. The second ‘in conversation’ piece, between human rights lawyer Angela Mudukuti and co-editor Louise Chappell, highlights the lived experience of a practitioner navigating the implementation and tenuous shifting understandings of international criminal law (Chapter 5). Mudukuti emphasises the central importance of taking an intersectional approach to gender justice at the ICC, and the challenges that remain in achieving that aim.

The book turns to two reflections on the importance of intersectional gender analysis in the ICC, one by political scientist Jarpa Dawuni (Chapter 6) and another by international criminal lawyer Priya Gopalan (Chapter 7). As Gopalan argues in her piece, ‘intersectionality can make visible other pertinent factors and structural inequalities, alongside gender, that are often disregarded or overlooked’. In Chapter 6, Dawuni explores the merits and demerits of intersectionality as a tool for feminist judgments. Questioning ‘whose feminism’, she argues that in engaging in feminist reimagination ‘we must begin from a place of a feminist recasting of the challenges, social hierarchies, barriers, constraints, and opportunities that give rise to, maintain, and advance the multiple discriminations, exclusions, and erasures some groups of people face in societies across the world’.

Part II: ICC Judgments Reimagined

The second part of the book includes the rewritten ICC judgments. Each rewritten judgment begins with a brief outline, added by the editorial team, to orient readers. Some comments about the way that ICC cases are organised will assist readers to navigate this part of the book.

The ICC’s proceedings are organised into ‘situations’ (a matter with jurisdictional boundaries both temporal and geographic, such as the situation concerning war crimes and crimes against humanity allegedly committed in Uganda since 2002) and ‘cases’ (proceedings against a particular person or persons, such as the case against former Lord’s Resistance Army commander Dominic Ongwen). Rewriting judgments from every ‘situation’ that has come before the ICC was not feasible. However, in an effort to achieve broad coverage, the book’s contributions address nine ICC situations: Afghanistan, Bangladesh/Myanmar, Central African Republic (I and II), Côte d’Ivoire, Democratic Republic of Congo, Mali, Sudan, and Uganda (Table 2.1).

These nine situations include crimes allegedly or proven to be perpetrated by nationals of African and Asian countries, as well as crimes allegedly committed by members of America’s Central Intelligence Agency (CIA). This selection is intended to reflect the fact that in reality, although past and present ICC proceedings have focused primarily on perpetrators from the Global South, they have also implicated, to varying degrees, state officials and military personnel from the United States, United Kingdom, Israel, and Russia.

Within these nine situations, each of the cases is enormous, when compared with most criminal proceedings in domestic courts. Before a case is even opened, there may be need for a judicial decision to authorise an investigation by the Office of the Prosecutor.Footnote ¹³ This was necessary in relation to the Myanmar/Bangladesh and Afghanistan situations, for example. Once an investigation has been conducted and suspects have been identified, a typical ICC case will often run for over a decade, and will include hundreds (if not thousands) of judicial decisions. For example, every case includes first-instance decisions (and often appeal decisions) on whether to issue an arrest warrant, whether to confirm the charges, and whether those charges have been proven beyond reasonable doubt. In the event of a conviction, there are further sentencing and reparations decisions. Most cases also include decisions about whether the case is already being adjudicated in a national court, whether fresh evidence is admissible, and whether the fair trial rights of the accused are being upheld.

Because ICC cases are so large, each of the rewritten decisions in this book focuses on just one issue of law, fact, or procedure that was addressed in the original judgment (some of which were identified by the contributors, and some suggested by the editors). This ‘single-issue’ approach is sensible because ICC judgments tend to be highly complex and lengthy (some exceeding 1,000 pages), with the result that rewriting the entire judgment would not be feasible.

We organised the rewritten judgments by situation and chronologically. Thus, we begin with the Democratic of Congo, which in 2004 became the first situation under investigation by the ICC, and we end with Afghanistan, which despite being under preliminary examination since 2007, did not progress to a formal investigation until 2020. Each situation is preceded by what we have termed as ‘reflections’ that introduce the relevant conflict, place the rewritten judgment within the context of the original judgment, and then critically reflect upon the reimagined work. Each reflection writer was also asked to consider how they might envision a different outcome, within or outside the bounds of the law, thus highlighting both opportunities for and constraints on transforming the ICC’s practice.

The final intervention in Part II is not a rewritten ICC judgment, but a poem. Sara Saleh’s compelling piece, ‘The Checkpoint’, evokes the daily realities of life in Palestine, drawing links with other colonised, indigenous, and subjugated peoples. By including Saleh’s poem as the final contribution in the ‘judgments’ section, we hope to inspire readers to consider the future potential and work of the ICC, and to reflect on the lived experience of those affected by conflict but who are rarely seen or heard by international criminal law.

Part III: Conclusion

The book’s conclusion reflects on the feminist judgment methodology and the ICC’s legacy after two decades in operation. We observe that one of the major themes to emerge from this collection is the need for judges to make decisions from the perspective of the context and lived experiences of those suffering from international crimes. We argue that this book demonstrates the enormous transformative potential of judges, and the opportunity to enhance gender justice in the ICC, while also recognising the challenges confronting the Court given the destabilising realpolitik of the current historical period.

Situations

Between July 2002, when the Rome Statute entered into force, and October 2023, when we completed this book, the ICC had instigated proceedings in twenty-eight situations concerning alleged crimes in twenty-six countries (twelve African states;Footnote ¹⁴ seven Asia and Pacific states;Footnote ¹⁵ two Eastern European states;Footnote ¹⁶ and four Latin American and Caribbean statesFootnote ¹⁷), and on flagships of Comoros, Greece, and Cambodia. Some of these situations have advanced so far as to include cases against specific individuals, some remain under investigation, and some have gone no further than the initial preliminary examination stage. Mostly, the alleged perpetrators have come from countries in the Global South. But, as shown in Table 2.2, they have included nationals from what the UN calls the ‘Western European and Other’ (WEOG) bloc.Footnote ¹⁸

As feminist researchers, the question of which of these many situations and cases to include was a difficult one. Given our time and resource constraints, it was not feasible to include every possible option. But any decision to include a case necessarily meant a decision to exclude others. In making that choice, we very much wanted to avoid replicating patterns of inclusion and exclusion which, in the real world, mean that crimes committed in certain places, especially in relation to the ICC, in Africa, receive significantly greater condemnation, and significantly more effective responses, than others. This concern has, quite validly, been raised about the ICC’s swift response to Russia’s 2022 invasion of Ukraine compared with its slower response to humanitarian crises in Africa, Asia, and the Middle East,Footnote ¹⁹ but it is a perennial problem that preceded the Ukraine crisis. With this in mind, we were committed to selecting situations concerning crimes including in the part of the world where we are situated (the Asia-Pacific), with some alleged perpetrators from the WEOG region even though they remain under-represented in the ICC’s caseload to date.

Alongside that consideration, we were also committed to selecting cases that would enable our judgment writers to grapple with a wide range of legal issues. ‘Not only rape cases’, we said, echoing other feminist scholars and lawyers who have called for a gender analysis in international criminal law that includes but goes beyond the issue of sexual crimes against female victims.Footnote ²⁰ This is not to suggest that there is no more to say on that particular issue; to the contrary, there is great scope for ICC judgments to more sensitively and more fairly adjudicate crimes of sexual violence, as many of the rewritten decisions in this book show. But we also wanted to explore the possibilities for gender analysis on issues that remain on the fringes of feminist scholarship in international law. This motivated us to include judgments on the ICC’s complementarity principle, on immunity from prosecution, on crimes with no obvious sexual content (such as deportation and pillage), and on what the Rome Statute calls ‘grounds for excluding criminal responsibility’ (that is, defences), for example.

A factor that we chose to prioritise was seeking input from a diversity of authors – scholars, practitioners, or other experts, including those with lived experience of the conflicts that have come before the ICC. To this end, we circulated an open call for contributions on widely read international law blogs, asked colleagues to share the call with their networks, and offered support such as training in feminist judgment methods and access to research assistants and library resources, in order to diversify and enrich our pool of contributors. This process informed our selection of situations because where we had the option of including contributors from countries where the ICC has been active, we were especially motivated to include those countries so as to make full use of the contributors’ expertise and experience.

The nine situations that we eventually settled upon reflect these various considerations and constraints. This enables our authors to consider crimes alleged to have been perpetrated in a range of African and Asian countries, including crimes allegedly committed by nationals of a Western country, and enables the book to explore a wide range of legal issues including (but not limited to) sexual violence against males, females, and third-sex people, and to engage with the three categories of crimes that have been adjudicated in the ICC so far, namely war crimes, crimes against humanity, and genocide.

Although our selection of situations and countries strikes a balance between all of the important considerations outlined above, we are the first to admit that it is imperfect and incomplete. To their credit, some of our contributors have, in principled and respectful ways, queried our selection decisions. We recognise the integrity and the value of these interventions, and have responded as best we could, given our constraints. Indeed, in selecting which situations and cases would be represented in this collection, we also found ourselves chafing against some of the drawbacks of the feminist judgment method. For example, we struggled with the fact that this method replicates existing gaps in the ICC’s jurisprudence, because the task is to rewrite judgments that have actually been made by the Court (a point underscored in Patricia Sellers’ contribution on the impact of ‘absent jurisprudence’ in Chapter 4). Thus, the method does not address the multitude of cases that could theoretically come before the ICC but are yet to do so, despite repeated calls for accountability by survivors and their supporters. We were also conscious that the craft of feminist judgment writing requires a high level of legal literacy, which limits the pool of contributors to those with legal training.

Acknowledging these limitations, we included several artistic contributions, in the form of two commissioned poetic reflections on the ICC (Chapters 1 and 18), as well as three photographic essays (Chapter 15). As already noted, in the first poem, Maxine Beneba Clarke weaves the potential embodied by the reimagined judgments through often untold stories about law and how its institutions touch our lives. The second poem, Sara Saleh’s ‘The Checkpoint’, provides a personal perspective on a long-running conflict which continues to take a heavy toll on Palestinian and Israeli civilians. The inclusion of these poems is intended to transcend, symbolically at least, some of the constraints of the feminist judgment method. That is, we wanted to include voices not draped in the (imagined) trappings of judicial authority, in a further acknowledgement of the limits of the law. Responding to reflections by some of our contributors, the poems also extend the book’s reach beyond the nine situations from which the judgments are sourced, in order to consider other sites of oppression, colonial domination, and violence.

In addition to the poetic interventions, the book contains three photographic essays featuring the works of Rohingya refugees Azimul Hassan, Omal Khair, and Dil Kayas, who fled persecution in Myanmar in 2017 for the relative security of life in the world’s largest refugee camp in Cox’s Bazar, Bangladesh. In 2018, Fortify Rights, an international human rights non-governmental organisation (NGO) that has been working in Myanmar for over a decade, along with Doha Debates, provided Hassan, Khair, and Kayas with smart phones and on-the-ground photography and media skills training in order to visually document and communicate their experiences of life in the camp. They have since established sizeable followings on Instagram, published a book of their photographs,Footnote ²¹ and won an award for their work.Footnote ²² The inclusion of Hassan, Khair, and Kayas’ photographs at the conclusion of the Bangladesh/Myanmar section in Part II of the book contributes a powerful visual expression of the ongoing impacts of atrocities committed in Myanmar, by illustrating in full colour the people and lives at the centre of the foregoing rewritten decisions. The editors’ decision to include photographs in the book in this way represents an attempt not only to go beyond the feminist judgment method and the limits of legal reasoning, but to break free of the constraints of the written word itself, transcending language and literacy barriers in the way that only an image can. These photographs are intended to complement the rewritten decisions on the Bangladesh/Myanmar situation, but also as a reminder that the individuals and lives that are rendered in black and white, through words on a page, in all of the rewritten ICC judgments in this book, exist beyond and outside of the confines of a judicial decision.

Our hope is that this book is the beginning of road for feminist judgment writing in international criminal law, but may pave the way for further projects which reach places, stories, and ideas beyond those covered in this book.

The agonising fact that after our selection was made the world continued to see the outbreak of new conflicts and escalation of others is one that also warrants discussion. For example, the book does not include a gender analysis of the crime of aggression because Russia’s 2022 invasion of Ukraine occurred once our project was well underway. Nor could we have predicted the intensification of violence in Gaza and Israel following Hamas’ actions in October 2023 and Israel’s response, which is occurring in real time at a sickening pace as we go to print, claiming the lives of thousands of civilians, many of them children. That these and so many other conflicts erupted and morphed throughout our writing process meant that decisions we made when setting the scope of the book feel different several years later. This is a challenge for any scholarly enterprise that responds to events unfolding in real time, and invites reflection on how future feminist judgment collections might be designed so as to be more responsive to developments in the real world.

Contributors

Contributors to the book include academics, practitioners, poets, and photographers. In terms of the contributing judgment and reflections authors, the editors sought to ensure this cohort was reflective of an international and intersectional feminism,Footnote ²³ and the book includes nearly fifty authors, of all genders, from almost twenty different countries. Bringing their diverse theoretical approaches, professional experience, and cultural backgrounds to the book, these contributors explore the connections between gender, race, nationality, ethnicity, faith, and sexual orientation in relation to the law and practice of the ICC. It was important to the editorial team that the book included perspectives from leading feminist scholars in international law as well as emerging voices in the field. This diversity among contributors was particularly important to us, in light of the relative homogeneity of our editorial team.

The selected authors include leading professors as well as emerging scholarly voices, international criminal law practitioners, and many current or former ICC/UN tribunal lawyers. This group includes people of all genders, several of whom hail from ICC situation countries, including Afghanistan, Kenya, Uganda, Myanmar, Palestine, and Bangladesh. All contributors share a commitment to feminist judgment writing, but bring diverse theoretical perspectives including Third World Approaches to International Law (TWAIL) and queer theory. Others bring experience from legal practice, including as prosecutors, defence counsel, victims’ counsel, and judicial officers. This diversity ensures a broad range of perspectives and, we hope, enables the book to speak to broad readerships and networks.

Context

As feminist scholars it is important to reflect upon the personal and political circumstances in which this project was completed. Against the backdrop of a global pandemic, the lines of demarcation between the public and private blurred as many of us worked from home. The gendered dimensions of this blurring have not been fully appreciated, but early researchFootnote ²⁴ and the reflections of contributors to this project well demonstrate the gendered nature of care. In this important respect, this is a very much a book produced in the time of COVID. Just as many real-life courts moved online, so did our project. Most meetings moved online, and although this had some drawbacks in terms of facilitating the in-person connections which have been the hallmark of previous feminist judging projects, it also made the process far more accessible to those with funding limitations, work commitments, environmental concerns, and caring responsibilities that make travelling to in-person meetings difficult.

Aside from the global phenomenon of COVID, while in no way diminishing its impact, contributors to this project concurrently experienced the full gambit of life circumstances that often occur behind the scenes of large projects. Within the wider team we marked the birth of a number of children, as well as encountering grief and loss, health challenges, and other struggles including childcare and financial hardships. Others had to contend with climate disasters and emergencies. Global conflict was never far from the minds of those within the project, and we recognise that a number of contributors were living, if not with active conflict, then with the challenges of post-conflict settings. Contributors were also promoted, changed careers, and embarked on new adventures and achieved outstanding goals. The influences, and unique adventures and trials, have no doubt shaped the final thoughts and considerations of all involved in ways that would not have been contemplated at the beginning of this project.

Process

In June 2021 we hosted two online workshops (offered at different times to accommodate different time zones) to introduce the methodology, set out a timeline, and build connections between collaborators. We facilitated participant roundtable discussions, inviting contributors to discuss what excited them about the project. Some contributors presented ‘elevator pitches’ about their ideas for writing their chosen judgment. In terms of introducing the feminist judgment methodology, we engaged our contributors in a discussion of a rewritten judgment from the Australian project to promote discussion about what made the piece feminist.

As part of these initial workshops, we also shared pre-recordings of interviews conducted by the editorial team with participants in previous feminist judgment projects: Heather Douglas (one of the editors of the Australian Feminist Judgment Project) and Catherine O’Rourke (one of the contributors to the Irish/Northern Irish Project).Footnote ²⁵ These interviews provided a helpful grounding in the genre of judgment writing, with both providing insightful reflections and advice about the challenges which stem from donning the imagined judicial robes to produce a plausible legal judgment (in ways that they may not previously have attempted as academics) and ensure that the judgment is feminist. O’Rourke reflected on the framework of the original judgment as a ‘useful guardrail’ which she used as a vehicle to ‘grow into’ her judgment. Douglas encouraged contributors to ‘throw out’ the original judgment, starting with a blank page rather than tinkering with the original judgment, while also ‘dropping the idea that you had to actually decide differently’, meaning that the rewritten judgment might reach the same conclusion as the original judgment, but through different reasoning. These meditations on avenues to pursue provided options and scope for our own participants to work in a way that suited their own approach.

In response to submitted proposals, we were fortunate to be able to provide participants with an interview with Rosemary Hunter, one of the editors of the UK Feminist Judgment Project (and editor and valued advisor to many subsequent projects). Hunter’s guidance built on her 2010 ‘checklist’ for feminist judging, reminding participants that ‘authority is not incompatible with feminism’ and that the power of language will assist in allowing them to don the judicial robes, depart from the academic genre, and engage with the judicial voice. Memorably, this was condensed to the phrase ‘just do it’. The generosity extended by these colleagues created a valuable bridge between this project and those within the global feminist judgment methodology community, and provided useful practical guidance for our contributors. We are grateful for their time and expertise in helping our participants craft their contributions.

Rounding off our series of video resources to support contributors in finalising their judgments was an interview between the editors, Rosemary Grey and Kcasey McLoughlin. This interview focused on specific mechanisms, rules, and procedures which operate within the ICC, assisting the participants in bolstering the plausibility of their rewritten judgment. Grey encouraged participants to dive deeply into the source material, to find evidence or legal arguments which may have been overlooked or disregarded in the real judgment, especially in ensuring that victims’ perspectives are heard, and to consider the Court’s power to change the legal characterisation of facts where appropriate.Footnote ²⁶

Although practical reasons restricted face-to-face engagement, we were still determined to work in a collaborative way, utilising the skills and expertise of all involved to create a supportive, peer-driven experience for both judgment and reflection writers. To achieve this, we organised online ‘discussion circles’ to enable contributors to participate in a facilitated peer-review process and benefit from each other’s creativity and expertise. This also permitted reflection writers to attend and gain an understanding of the individual approach of the judgment writers, strengthening the reflective chapters.

Beyond organising these meetings, we also encouraged contributors to reach out to each other for support and feedback in an attempt to further community building within the project itself. The editorial team additionally provided individual and general feedback on each judgment outline, and then later on the draft judgments. This was supplemented by material put together by the editorial team which sought to provide guidance on issues of evidence, facts and law at the ICC more specifically. As editors, it was important to us, following previous projects, not to be overly prescriptive about what counts as ‘feminist’. For the most part, our feedback was not concerned with tone or style, but rather the plausibility of the judgment. That is, did the judgment read as legally tenable, even if the authors chose to depart from the style and conventions typically used in ICC judgments. While asked to stay within the bounds of the Rome Statute, our judges were encouraged to find their own authentic judicial voice, and we kept an open mind when contributors defended their decision to take their rewritten judgment in a direction that we had not anticipated.

The resulting judgments are as diverse as the contributors who wrote them. Some opted to adhere strictly to the traditional feminist judgment methodology, whereby their judgment reflects the formulations, rules, and structure of the original judgments while also focusing on concepts and evidence that were not afforded attention. Other contributors were perhaps more disruptive of the method – pushing the bounds of plausibility (at least insofar as the Court is currently constituted) and imagination. For example, Rigney’s abolitionist approach, McKay’s imposition of a non-carceral sentence, and Zarsky and Irving’s creation of an ‘additional comment’ have not been canvassed within the current judgments of the ICC, but they challenged us to consider what might be possible if the role of the judge was reimagined in more radical ways. The wealth of possibilities expose the rigidity of the current ICC system and missed opportunities to deliver gender justice, as well as highlighting potential ways forward for the Court.

The final submitted judgments were then passed to the reflection writers. Engaging in their own discussion circles, reflection writers were invited to read the reimagined judgments and compare them with the original, finding thematic lines for all the judgments within their situation. While the reflections are also as varied as those who authored them, all follow a similar structure. First, a brief contextual overview is offered, whereby key actors, events, judgments, and outcomes are identified to help situate the reader. Attention then moves to how the judgments differ from or align with the original judgment, interrogating what makes the reimagined judgment ‘feminist’. Finally, the reflection offers a critical appraisal of the possibilities that ensue when gender is seriously considered within judicial deliberations. Where the reflection writer has considered it appropriate, they have also offered commentary on the approach undertaken by the judgment writer. Following the suggestion from reflection writer Immi Tallgren, this approach allowed the judgment and reflection writers the opportunity to ‘think outside of the box’,Footnote ²⁷ not only to explore their own interpretation of the feminist judgment method but also to offer their own thoughts about what a more gender-sensitive international criminal law system might look like. Some respectfully disagree with the approach undertaken by the judgment writer while others prefer to draw attention to the context-specific realities that underpin the judgment in the first instance. Although judgment writers were not asked to respond to the reflection chapters in this book, contributors are free to continue to express and exchange ideas in other forums.

Focus

This project aligns with previous feminist and critical judgment projects whereby the intention is to suspend disbelief, thereby allowing the judgments to be read as legally plausible. The desire was to clearly demonstrate that each Chamber of the ICC had the ability to come to the judgment, within the parameters of the ICC’s legal system, and based on the information that was available at the time, but that the current systems and processes of thinking utilised by the Court interfered with that outcome. We therefore encouraged contributors to adhere to the information that was available to the Court at the time. We suggested scouring the testimony, documentary evidence, and expert evidence that had been submitted in the relevant case, even if it had not been cited in the real decision, to locate the reimagined decision within the ambit of the Court, reflecting the strict/classical feminist judgment method adhering to admissibility rules.

As we acknowledge, however, that part of the feminist judgment method is also disrupting the traditional paradigms of judicial processes; where contributors sourced material outside of these parameters, we decided not to be too restrictive. For example, Radhakrishnan and Shubin’s judgment (about genocide in Darfur) cites some sources which post-date 4 March 2009, but have been retained for pedagogical purposes with an asterisk (*) notation because they are relevant and valuable sources that might assist with subsequent genocide decisions by the ICC and other courts. We also encouraged contributors to make full use of the ICC’s legal framework, such as the provisions permitting the Court to request evidenceFootnote ²⁸ or to invite submissions from amici curiae.Footnote ²⁹ Therefore, contributors were able to note the lack of evidence they wished to consider, such as social harms or gendered roles, and demonstrate the need for such evidence for a full determination to be made.

The second core focus was developing rewritten judgments that are ‘feminist’, focusing on and highlighting the lived experiences and evidence that is often dismissed or relegated at the ICC. Although we as editors wanted to leave space for our contributors to bring their own conceptions of feminism to the project, we were guided by Hunter’s ‘checklist’Footnote ³⁰ for what constitutes feminist judging, such as asking the ‘woman’ question, including women and other marginalised actors, challenging gender bias on both legal doctrine and judicial reasoning, reasoning from context and with awareness of power relations, foregrounding the reality of women’s lived experience, trying to redress ‘injustices and improve the conditions of women’s lives’, promoting substantive equality, and drawing on ideas from feminist literature).

But going beyond that checklist, we also encouraged contributors to consider intersectional feminist analysis, and to amplify the voices of victims/survivors where possible. Contributors interpreted these cues in different ways. For example, Anushka Sehmi’s reimagined judgment emphasises the importance of giving victims agency in the ICC, and Souheir Edelbi’s judgment places victims at the centre of the ‘interests of justice test’. Combining these ‘feminist’ techniques with other critical approaches, such as queer approaches and TWAIL approaches, were also welcome. The result of this process and focus is twenty-seven rewritten decisions that critically engage with international criminal law, demonstrating that within the current system, there is scope to render decisions that are feminist, victim-focused, and plausible.

The ICC’s Poor Record in Attaining Gender Justice

Sexual and gender-based crimes (SGB) are endemic in periods of conflict,Footnote ⁶⁰ and yet the ICC has secured just two convictions for such crimes, both towards the end of the second decade of its operation: Ongwen 2021Footnote ⁶¹ and Ntaganda 2019.Footnote ⁶² This low level of accountability creates a series of injustices: it leaves intact perpetrator impunity; it leaves victims without recognition or reparation; and it undermines the legitimacy of the ICC, given the commitment of its architects to advancing gender justice across all systems, jurisdictions, and societies.Footnote ⁶³ But the ICC’s weak contribution to gender justice runs much deeper than just failed convictions for SGB crimes; the ICC’s failure to integrate a gender perspective has touched every stage of the trial. For example, the Court has not considered gendered barriers to justice when assessing whether its cases should be turned over to national courts,Footnote ⁶⁴ and has excluded women’s perspectives in cases relating to the destruction of cultural heritage.Footnote ⁶⁵ Grey’s work on prosecuting SGB crimes has shown how the proportion of SGB charges decreases significantly at each stage of trial in comparison to other crimes, illustrating an overarching issue with both prosecutorial and judging approaches.Footnote ⁶⁶ To improve accountability for SGB crimes in the ICC, and to ensure that the Court develops a more gender-sensitive practice which places survivors at the centre, there is an urgent need to understand the reasons for this failure. This includes filling a research gap to interrogate the role of the judiciary in perpetuating the problem.

One such strategy for understanding the part the judiciary has played in the Court’s poor gender justice record is adopting the feminist judgment methodology. The focus that the methodology brings to judging is currently lacking from the sophisticated critique of ICL which feminist scholars have been developing since the 1990s.Footnote ⁶⁷ The focus of this work has primarily revolved around issues of how legal concepts and practices have historically been gendered in ways which lead to women’s discrimination in the courtroom,Footnote ⁶⁸ and how women survivors of SGB violence in conflict have been ignored, or their experiences rendered less grievous than other crimes.Footnote ⁶⁹ However, missing from feminist ICL scholarship is the concept of ‘feminist judging’, a critical method which, as discussed above, has been used in domestic/national settings, and an understanding of how such an approach can be utilised in efforts to overcome gender biases embedded in ICL. To the extent that international legal studies have addressed gender and judging at all, the focus has (mostly) either been on increasing the number of women judges on relevant courts,Footnote ⁷⁰ or on feminist judging in non-criminal international law venues.Footnote ⁷¹

Furthermore, as noted in Chapter 2, existing gender-oriented analyses of the ICC have tended to focus on how poor investigation and prosecution strategies have contributed to the ICC’s initial failure to secure convictions for SGB crimes.Footnote ⁷² The ICC Prosecutor’s Office recognises this fact and has consequently appointed gender advisors and published a comprehensive gender policy aimed at improving its track record across the board.Footnote ⁷³ This focus has meant that there is comparatively little recognition or research (or at least the recognition has been slower) into the role that judges have played in adjudicating SGB crimes, and no collective actionFootnote ⁷⁴ by the ICC’s judiciary to draw lessons from the extensive research on gender-sensitive judging in domestic courts.Footnote ⁷⁵ As such, a feminist rewriting of ICC decisions examines the Court’s poor conviction record from a new angle.

Gender Parity and Gender Expertise on the Bench

It is relevant to consider the ICC’s own record in terms of gender parity and gender expertise on the bench and whether this makes the Court a suitable focus for another feminist judgment project. The importance of not conflating sex with gender expertise was at least to some extent addressed by the Rome Statute through its provisions for the election of judges. Notably, Article 36(8)(a) provides that states parties shall in the selection of judges ‘take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges’. Importantly, it further specifies in Article 36(8)(b) that ‘States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children’.Footnote ⁷⁶ Although these provisions do not conflate sex and expertise, they fall short of requiring equal gender representation and they do not put any particular weight on the matters to be taken account (for example, gender expertise).

The Rome Statute’s provisions for judicial election provide some context to the Court’s gender statistics, which have shown mixed success in embedding gender representation and expertise. From 2010 to 2014, women constituted the majority of justices on the ICC bench, reaching a peak of 61 per cent in 2011. However, underscoring the precarious nature of such gains, in 2015 female representation on the bench slipped to an all-time low of 33 per cent.Footnote ⁷⁷ After the 2020 ASP Session, women held nine of eighteen judicial appointments.Footnote ⁷⁸ At the 2023 ASP, two more women were elected to the bench, resulting in women again holding 61 per cent of all judicial positions.

As of March 2023, there were fourteen nominations to the positions, with six female to eight male nominations.Footnote ⁷⁹ Notably, all three candidates from the Asia-Pacific states were male.Footnote ⁸⁰ Accordingly, even specific provisions which account for a ‘fair representation’ have not necessarily been a safeguard for securing something akin (or close) to parity.

Perhaps more significantly for our purposes is the number of judges with specific gender expertise. In 2023, five out of the eighteen sitting justices self-identify as possessing gender expertise:Footnote ⁸¹

1. (1) Judge Luz del Carmen Ibáñez Carranza, gender and children legal expertise.

2. (2) Judge Chang-ho Chung, gender legal expertise (ECCC).

3. (3) Judge Bertram Schmitt, gender legal expertise.

4. (4) Judge Althea Violet Alexis-Windsor, legal expertise in sexual violence.

5. (5) Judge Miatta Maria Samba, legal expertise in sexual violence.

Our point here is not to over-emphasise the significance of these numbers in any empirical sense. Understood in a wider historical context (which has denied women access to judicial roles) – parity or near parity on the bench must be set against that reality. But, as Kenney explains, numbers matter because they affect power in institutions, and we ‘need to know if the institution is uniform, skewed, tilted, or balanced’Footnote ⁸² to understand how institutions are gendered.Footnote ⁸³ Gender expertise is not the sole purview of women, and sex does not connote knowledge or authority. Two of the above five judges self-identifying as having expertise are male.Footnote ⁸⁴ Moreover, I am not suggesting that this expertise is synonymous with a feminist approach to judging – although of course it stands to reason that this expertise might manifest itself this way (or at least increase the likelihood that a judge possessing such expertise might be more likely to show feminist or gender-sensitive approaches to judging). Rather, my point is about the relative importance that might be placed on ensuring that the ICC judiciary reflects the principles of fair representation, and the election of judges with gender expertise.Footnote ⁸⁵ That is, despite these provisions, the Court has a mixed record, both in terms of gender parity and in the appointment of judges with specific gender expertise.

This record makes the ICC fertile ground for another feminist judgment project. The fact that the Court’s provisions on gender representation and expertise have not been fully realised opens the door for asking: What if they had been? How might judgment differ if written by someone openly espousing feminist principles? Importantly, the fact that such expertise is explicitly recognised (to an extent) by the Statute itself renders its application more pertinent.

Highlighting the primary importance of gender expertise on the bench is even more important in light of the Court’s continued preoccupation with numerical rather than substantive representation. Certainly, it feels as if this concern with parity remains significant – to the point that it might obscure other concerns – in accounts about judges and the role that they might play on the Court. For example, on International Women’s Day (IWD) in 2023, the President of the Court, Judge Piotr Hofmański, made a point of emphasising the numerical picture:

In contrast, in his remarks on IWD, ICC Prosecutor Karim A. A. Khan KC also emphasised the ICC’s working environment, but appeared to evidence a wider and more nuanced understanding of gender justice than focusing solely on equal representation. He said:

Now, of course these are isolated comments made in recognition of International Women’s Day – they should not be taken as representing a complete picture regarding the institutional understanding of gender justice. But they nonetheless serve as another reminder that more work is needed in emphasising the role judges might play in improving gender justice.

Fulfilling the Promise of the Rome Statute

Finally, it is not merely the ICC’s poor gender justice record or varying levels of gender expertise that make it a suitable forum for extending the feminist judgment methodology. Rather, the fact that the Rome Statute itself already contains substantial (and under-utilised) gender-sensitive provisions transforms the rewriting from an academic exercise into a real-world possibility. The editors of this volume have elsewhere canvassed the possibilities for ICC judges to engage in gender-sensitive or feminist judging, stressing the significant promise in the Rome Statute when it comes to delivering gender justice. As we argued, there are three main spheres of judicial activity which could be utilised by the bench to bring into effect the potential of the Statute: interpreting the law, making findings of fact, and making procedural decisions.Footnote ⁸⁷

During the Court’s creation, the international feminist legal community successfully advocated for strong gender justice provisions in the Rome Statute.Footnote ⁸⁸ These provisions were supported by numerous states, as well as the Women’s Caucus for Gender Justice, the key feminist organisation engaged in the negotiations.Footnote ⁸⁹ Indeed, some of the proposed gender justice provisions had to be watered down in order to appease conservative states, particularly the provisions defining terms such as ‘gender’ and ‘forced pregnancy’.Footnote ⁹⁰ However, the Women’s Caucus and like-minded states were successful in locking in many gender justice rules. For example, the Rome Statute recognises a wider range of sexual and gender-based crimes than any previous instrument of international law;Footnote ⁹¹ it refers to special measures to protect the dignity and well-being of victims of SGB violence;Footnote ⁹² and it requires that all sources of law applicable within the ICC are interpreted and applied without adverse distinction (discrimination) on gender grounds.Footnote ⁹³ Of course, the Rome Statute’s provisions aimed at securing gender expertise in the Chambers (that is, the judiciary),Footnote ⁹⁴ Office of the Prosecutor,Footnote ⁹⁵ and RegistryFootnote ⁹⁶ are all also important in embedding this expertise in the institution.

As such, embedded within the Rome Statute is an unrealised promise for gender justice. The Rome Statute provides a firm foothold for such an approach – and acknowledging, of course, that the method has been successfully deployed in reimagining historic and more contemporary decisions where arguably no such firm foothold exists. The feminist judgment methodology provides an important forum to explore the potential of this promise by changing who decides the law, testing the limits between legal plausibility and feminist principles.

It therefore presents something of a blueprint for what might be possible within existing institutions. Is it akin to belief in a fairy tale to imagine the appointment of real-life feminist judges? Here I think that at least part of the work of the feminist judgment methodology is to destigmatise the notion that bringing such a perspective to bear is antithetical to the judicial role. Indeed, even if ICC member states want to elect feminist judges, and even if serving judges want to become more gender sensitive, there is little guidance on the features of feminist judging in relation to this particular court, or in relation to ICL more generally. This is due to a lack of knowledge transfer from the extensive literature on and practice of feminist judging in domestic courts to the international arena.

This book serves to bridge that gap. It demonstrates what might be possible on the international stage. It invites the legal community, and those beyond, to engage with the work already underway in many domestic spheres; to reimagine who the imagined international criminal law judge might be, and how they might approach their task. It reopens the possibilities that were in full force during the 1998 Rome Conference and earlier preparatory meetings. So, why another feminist judgment project? Because the promise and potential of the ICC for gender justice is not a fairy tale – and that is something we as feminists should believe in.

On ‘Comfort Women’ and the Tokyo Tribunal

On the Ravensbrück Camp and Nuremberg Trials

On Gendered Deportation and Enslavement

On Enslavement and the ICTY

On Slave-Trading

On the Rome Statute’s Silences around Enslavement and Slave-Trading

On the Bifurcation of ‘Enslavement’ and ‘Sexual Slavery’

On Feminist Judging

The Merits

Intersectionality as a feminist framework has proven to possess the theoretical rigour to explain the lived experiences of diverse groups. The replicability and generalisability of intersectionality must however be weighed against the feminist principle of essentialism.Footnote ¹² In applying an intersectional lens, judges, prosecutors, and judicial staff can understand how the racial, gender, class, and social categories affect and determine who is a victim of a criminal offence. Through an intersectional lens, judges may also gain some insights into how language affects how defendants express themselves in court, thereby allowing judges to seek a deeper understanding of language, cultural, ethnic, and religious codes.Footnote ¹³ From a feminist perspective, intersectionality can help illuminate how women’s lives are constructed as victims, why women victims may not express themselves with particular words, and how their age and social standing impact what they say in court. An example of the latter experience is captured in the words of Ugandan Judge Julia Sebutinde, the first African woman to serve on the bench of the International Court of Justice:

The Demerits

There are several pitfalls that must be avoided in attempts to apply intersectionality in international criminal cases before the ICC or other criminal courts. First, it is critical to understand that not all individuals within a socially constructed group face the same oppression. For example, not all women victims of a criminal offence in a conflict will be heterosexual, of the same age, practise the same religion, or have the same educational achievements. These categories show the need to adopt an intra-category approach to decipher the differences within groups.Footnote ¹⁵ Second, applying an intersectional lens may open a Pandora’s box of claims that may not be apparent to the most well-versed scholars of intersectionality. For instance, how will judges react to new claims of categorical identities that claim special protections due to new identities developed out of artificial intelligence? Will an avatar or a robot be allowed to claim special prosecutorial or judicial protections? These are just two examples of what could emerge as judges grapple with new rights and freedoms.

What Is Feminism and Whose Feminism?

If we proceed on the assumption that feminism is about seeking equality between men and women in society, several questions come to the fore. First, the question is, who is the woman we are referring to in this context? How can we assess the personal inclinations or lived experiences of the judgment writers to make an assessment of how well they understand the issues of Indigenous/Aboriginal/Native American/‘Third World’/‘Muslim’, and other marginalised groups of women? Or the plight of immigrant, disabled, sex-trafficked women? To what extent are the lives of these ‘other’ women just an exercise in a dark alley of feminist knowing for the judgment writers if the writer has not lived in those conditions and experienced the daily and historical marginalisations of the very group they purport to ‘save’ through their rewriting exercise?

Who is the ‘woman’ for the purposes of these judgments? To what extent are these projects considering ‘feminism’ not from a biological deterministic binary of the female, but feminism more as a belief system (which, though it benefits from feminine ways of being) is not the exclusive preserve of women? Global feminist movements have helped to advance women’s rights around the world. Yet these movements have not been without their tensions as feminist-ideological battles have been waged by and among women/feminists. Drawing on the works of postcolonial and decolonial feminists,Footnote ¹⁶ the bifurcation of the global feminist movement into the ‘developed’ and ‘developing’, ‘first, second, and third’ worlds has led to the ‘othering’ of a large swath of women in the world. Scholars have called for a true global sisterhood, informed by a collective and inclusive mobilisation around women’s issues.Footnote ¹⁷ As the different FJPs attempt to reimagine a just world through a feminist lens, it is important to begin the exercise from a place of self-reflection to understand the extent to which the lives and experiences of ‘othered’ and ‘third world women’ may be centred vis-à-vis feminist legal principles that purport to produce just, equitable, and feminist-inclusive jurisprudence.

Which Intersections Matter or Which Are We (Re)marginalising?

At the heart of intersectionality is the need to recognise the multiplicity and simultaneity of oppressions. Women victims embody multiple identities; thus, it is when architects of justice choose one and not other identities that the gravest injustices can occur. The rewritten judgments in this volume run the risk of reproducing marginalisation. As the co-editors note in Chapter 2, due to the overwhelming number of issues in each of the ICC cases/situations under review, authors were tasked with picking and focusing on one issue only. Since this project is an exercise in showing the possibilities of future judgments, it is hoped that this message will be strongly shared with those who will be relying on these rewritten judgments as guideposts – there is more to be said and done. As suggested earlier, the task of judges, prosecutors, and judicial staff in peeling back their personal biases, stereotypes, and lack of knowledge about the lived realities of the litigants before them; and this requires training. Training programmes on (un)conscious bias and intercultural competence will be helpful in moving these actors to a place of awareness. Nonetheless, awareness is not enough to counteract the insidious impact of deep-seated biases. As the famous Black feminist scholar and poet Audre Lorde noted, the ‘master’s tools will never destroy the master’s house’.Footnote ¹⁸ The tools of patriarchy and racial, class, ethnic, and religious discrimination are ‘houses’ of oppression with deep foundations. To break down these ‘houses’ requires the adoption of holistic approaches to naming, centring, and hearing the voices of marginalised groups. How will judges and judicial staff determine which intersectional identities need to be protected? Will gender trump race? Will disability trump sexual orientation? Will social class trump geographical location (Global North versus Global South)? These are critical questions to be answered in order to avoid the vicissitudes of remarginalising groups that are already marginalised. When the latter happens, we are reconfirming the second part of Audre Lorde’s famous quote, ‘they may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change’.Footnote ¹⁹

Coloniality as a Vehicle for Patriarchy and Racism

Given the criticism against the ICC for its focus on the African continent, it is no surprise that the majority of the rewritten judgments in this volume deal with cases emanating from Africa.Footnote ²⁰ The co-editors in Chapter 2, and some of the contributors, including Angela Mudukuti in Chapter 5, have reflected on the role of imperialism and colonisation as factors explaining the overwhelmingly African cases that have come before the ICC bench. Beyond the impact of colonisation on the spatial borders of these countries, it is essential to question the role of coloniality as a constant state of being, one that lies beyond physical occupation, as a continuity of imperial patriarchy and racism around the world. While physical colonisation may have ended, coloniality as an idea of subjugation continues to be a principal means of control over the political, economic, linguistic, and legal systems of former colonies.Footnote ²¹ The Rome Statute establishing the ICC attempted to create a diverse bench by considering geography and area of expertise. These modest gains at a diverse bench do not shield the court from failing to account for the nuances in the historical, socio-cultural, and myriad other contexts within which these cases emerge. While the racial and gender diversity of the court has been touted, little has been said about the staffers and legal officers who handle the daily operations of these courts. These important issues are beginning to receive some scholarly attention and also form part of the conversation between Angela Mudukuti and Louise Chappell in this volume (Chapter 5).Footnote ²² To what extent are these staff positions diverse and inclusive? As these feminist judges emerge, how might authors (rewriting judgments) understand the continuity of coloniality and the extent to which it affects and determines the commission of some of these crimes? Who might charges be brought against, and who should be held accountable for the crimes? To what extent is coloniality a constant state of oppression that marginalises individuals along a wide spectrum of discriminatory acts and omissions?

The African Feminist Judgments: Is Africa a Continent or a Country?

The traction gained by the first feminist rewritten judgments is remarkable. One thing that has stood out about these projects is the focus on individual countries as the units of analysis.Footnote ²³ Why is it that in the context of countries in Africa, the project has been lumped into the ‘African Feminist Judgments Project’? Is this overgeneralisation and over-homogenisation of a continent of over a billion people not problematic and emblematic of how the issues that arise out of the first judgments stand to be repeated in other forms if the generalisation is not addressed? How can we realistically apply an intersectional lens to a continent that has probably one of the most diverse legal systems – combining transplanted civil law from the French colonial empire, common law from the British colonial empire, Islamic law from invasions from the Middle East, all of which operate side by side with indigenous customary legal systems? The historical, social, political, economic, linguistic, ethnic, and other identities and experiences are too numerous to cluster into one lived experience. What operates as patriarchy may operate as matriarchy in another culture within the same country.Footnote ²⁴ How do we decipher and classify age as a social category and its impact in determining women’s situational ranking in different national contexts?

Who are the Judges and the Registry Officials

Much of the early scholarship on international courts and tribunals focused on who international court judges were, and how they were selected.Footnote ²⁵ While the issue of descriptive diversity on the bench is still instructive, other explorations of diversity beyond the usual issues of race, gender, and geography are gaining traction. Freya Baeten’s edited volume Identity and Diversity on the International BenchFootnote ²⁶ explores many themes, including language, ethnic, religious, and geographic diversity. While ethnic and religious diversity were debunked as not being critical factors in considering diversity on the bench, writing from personal experiences as an international judge, Judge Nosworthy maintained the importance of cultivating an inclusive climate on the bench that allows the minoritised judge from a ‘tiny island’ to be heard and seen as an equal voice.Footnote ²⁷ Many other examples abound of minority (mostly women) judges who questioned how their intersecting identities would affect their presence on the bench.Footnote ²⁸ These reflections by the judges who sit on these courts are instructive because they signal the continuity of social and judicial power hierarchies even on the benches of international courts.

Overwhelmingly, the staff who constitute the registry of these courts are also drawn from geographically dominant, Western countries. We must therefore question to what extent the feminist rewriters reproduce these inherent power hierarchies by failing to question the composition of those who provide essential administrative functions for the Court. What principles of soft law are at play when feminist judgment rewriters write from positions of relative privilege when compared to the lives of the people in the cases they are deliberating? To what extent are the original evidence and the facts of the case they are rewriting coded in language presenting barriers which they may not be able to decode? To what extent will the judgment rewriters have access to the non-verbal communications and cues that were present in the courtroom during the original cases, and how did such non-verbal communication influence the decisions of the judges? These are practical questions to explore as we engage in the liberatory exercise of (re)writing these feminist judgments through a feminist intersectional lens.

Women Judges and the Intersectional Burden

Most feminist analyses operate from the assumption that women will understand women’s issues. This assumption leads to the expectation that women should be at the forefront of finding solutions to women’s issues. These assumptions mostly hold true because women can relate to women’s issues by ‘stepping into’ the imaginary shoes of other women. This ability to transpose into the reality of another woman was crucial in important international criminal cases such as the Anto Furundzija and Kunarac et al. cases, where Justice Florence Ndepele Mumba presided, and where for the first time the International Criminal Tribunal for the Former Yugoslavia (ICTY) pronounced sexual violence in the form of rape as crimes against humanity, war crimes, and torture. In the Akayesu case involving Judge Navi Pillay, the International Criminal Tribunal for Rwanda (ICTR) held rape as a war crime. Equally, in the Sierra Leone case Trial Chamber II, AFRC Judgment, Judge Sebutinde’s concurring opinion in distinguishing between marriage in a time of peace and ‘forced marriage’ in a time of war helped established important principles of criminal conduct in conflict situations.Footnote ²⁹

Despite these examples of the contributions of women judges to developing jurisprudence on international criminal law, we must be cognisant of the fact that not all women are feminists, and not all women will understand the intersectional challenges of other women. In Intersectionality and Women’s Access to Justice in AfricaFootnote ³⁰ I introduced the concept of layered intersectionality. This framework makes the argument that women judges face both oppression and privilege in their access to the courtroom as judges. The level of personal oppression they have faced can inform the extent to which they relate to other women facing similar or different challenges. The oppression need not be personal and can be communal, thus allowing them to relate to what others are facing as women.

Thus, while it may be easier for women to relate to these intersectional burdens, not all women can relate, while some make no effort to relate, limited by the judicial principles of ‘impartiality’. An anti-essentialist reading of this burden women bear as frontline workers in understanding other women’s experiences is important. Until the essence of anti-essentialism is achieved, the extent to which feminist judgment rewriters can explore the detailed socio-cultural understandings of the victims (or purported victims) must be at the forefront in grounding these judgments in an intersectional framework. Understanding women’s situational identities should be the task of all judges – both men and women.

Feminist Judgments beyond Gender: Where Are the Men?

Is feminism intrinsically female? Can feminists confidently profess to represent the many marginalised voices that lie at the substrata of the intersectional barriers and challenges feminists claim to see from their academic towers or activist microphones? Beyond the pen of the academic and the advocacy of activists, can we really hear the voices of the marginalised and the newly emergent marginalised groups? In the current volume, most of the contributors are women. A review of the table of contents of other feminist judgment projects shows the same pattern, thus confirming that this challenge is not unique to the current volume. As an editor of several books, I know first-hand the difficulty of always hitting the diversity mark when selecting chapter contributors. My call to action is for feminist scholars to recruit male feminists. For these judgments to be sustainable and have the desired impact, they must extend beyond the confines of feminist circles and networks of feminist scholars. Including men who understand, respect, and can engage with intersectional and interdisciplinary feminisms is essential. Recruiting men who can rewrite a judgment from a feminist perspective will encourage male judges to descend from their judicial towers and engage with these rewritten judgments. It will also facilitate the efforts to use these feminist judgments as teaching materials in law schools.Footnote ³¹ If we do not make that extra effort to add men, we risk preaching to the choir. I do however recognise that some readers may ask why we need to ‘re’centre men in our writings and spaces as women.

For Judges

Achieving a more intersectional and inclusive feminist judgment calls for several changes, two of which are presented here. First, judges must acknowledge their positionality relative to the socio-cultural context and temporality of the case and the victims who appear before them. Doing so will allow them to recognise the multiplicative and additive effects of intersectionality, thereby expanding the range of reliefs they order. But how might a judge understand the wide spectrum of intersectional identities? Is there a universe of identities from which a judge can draw when they apply an intersectional lens? Are judges required to consider extenuating circumstances in the two dominant legal traditions the ICC operates from, or do they have the knowledge and skills in understanding and interpreting pluralistic legal systems?

Second, judges must accept the need for continuous judicial education and attentiveness to the role of intersectionality in determining the circumstances that lead to the cases before them. As eloquently submitted by Mudukuti in Chapter 5 of this volume, while some judges may be averse to ‘professional development’, the adoption of creative techniques such as ‘retreats’ could be used. However, the caution here is to ensure that such training about intersectionality and (un)conscious biases should not be one-offs but rather a mainstreamed and continuous programme.

The Registry

As one of the four primary organs of the ICC, the registry plays important functional and administrative roles with consequences for the judicial outcomes of cases that come before the bench. These functions include administering court services, assisting external defence and counsel for victims, organising witness and victim protection, and facilitating victim participation and reparations.Footnote ³² These are important functions that bring the court closer to victims and legal counsel. Therefore, it is critical for the staffers working in the registry to have a deep and contextual understanding of how intersectionality and the multiple axes of oppressions and exclusions affect the people they deal with.

To what extent have these rewritten judgments considered the roles of these ancillary staff in the rewriting process? How might we engage the registries, clerks, and investigating authorities accountable for understanding and applying the concepts in these rewritten judgments? These questions are not a critique of the feminist judgment projects. They lead to two recommendations.

First, there should be representational diversity in the rank and file of the registry. The data presented by Mudukuti supports several prior and ongoing advocacy efforts for the racial, geographic, and gender diversity needed in the ICC. A diverse organisation leads to optimal outcomes, and this is crucial for an organisation that deals with high-level crimes of impunity and the violation of human rights. The ICC registry must engage in conscious and intentional efforts to recruit an expert group of diverse staffers; this is not a call for some sort of affirmative action – it is simple: if they seek, they will find equally qualified racial minorities.

Second, it is essential for the ICC to reform its internal institutional/organisational norms and practices. It is not enough to recruit diverse candidates/staffers and dump them in an institutional environment that operates along toxic levels of overt and covert racism, gender discrimination, sexual harassment, and other forms of oppression. The UN and the ICC have attempted to address some of these issues, but more needs to be done.Footnote ³³ In November 2022, the Institute for African Women in Law organised a public dialogue on intersectionality and decoloniality in collaboration with the ICC registry, the ICC Staff Union, the IRMCTFootnote ³⁴ Focal Point for Diversity, Equity, and Inclusion, the ICC Gender Equality Focal Point, and the ICC Office of the Prosecutor (OTP) Focal Point for Gender to address issues of discrimination in their organisations. The seminar ‘Decolonization of Workplaces: A Communal Dialogue’ was hosted virtually with the goal of addressing hard issues such as the decolonisation of workplaces, different forms of workplace harassment, and the role of staffers in breaking the walls of oppression. While more such dialogues are needed, they should be backed by actionable plans by the leaders of these organisations to hear the voices of the oppressed and address their concerns. The intersectional oppressions that staffers in the registry face must be simultaneously addressed alongside the issues victims face. Justice cannot be served to victims if staffers are constantly navigating injustice and the multiple axes of oppression within the corridors of the organisation.

For Researchers

At the outset of this chapter, in line with feminist praxis and academic reflexivity, I presented my positionality (which is by no means universal or exhaustive) to contextualise how I intended to approach the issues to be discussed in the chapter. Throughout the analyses, I was conscious of how my privilege may influence my writing, and this leads me to the following recommendations. First, exercising multiple consciousnessesFootnote ³⁵ should be the guiding principle of all researchers and feminist scholars. Researchers must be in tune with their positionalities and how multiple layers of privilege and power may intersect and filter through the pen of their feminist judgment rewriting.Footnote ³⁶

Second, researchers should approach these judgments with an inclusive ethic of care that is focused on the additive and multiplicative impact of intersectional identities. If we privilege gender/women over other social identity categories (race, ethnicity, religion, ability, sexuality, age, and so on), we risk reproducing the same power hierarchies. In which case, we may just be moving the stakes one notch up or down, with little to no implication for the diverse lives affected by the decisions.

Third, beyond acknowledging positionality and privilege, scholars and researchers must constantly engage in self-reflection of the approaches, strategies, and tools being used to challenge the masculine legal norms and principles in the original judgments. Doing that will be essential to meeting the FJP goal of a feminist (re)imagining while eradicating the (re)marginalisation of the people we purport to liberate through the power of the feminist pen.